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August 4, 2004


In the wake of Blakely, I have lately been recalling childhood days when a simple shout of "Do-over!" could remedy mistakes on the playground. (I also recall when some clever kids started shouting a "No Do-overs!" prohibition at a game's outset; future lawyers, no doubt.). These thoughts arise because the potential number of sentencing "do-overs" after Blakely is mind-boggling. Even putting aside questions of retroactivity, the Acting SG has already said that many of the "thousands of sentencings" currently in the works "may have to be redone once [the Supreme] Court settles the applicable law." Booker/Fanfan Reply Brief at 2 (background here)

It is obviously with an eye to limiting the number of "do-overs" that the Fourth Circuit in its order in Hammoud recommends announcing a "backup sentence" (details here), and the same impulse obviously has influenced Judge Cassell and others district judges to announce backup or alternative sentences during this time of uncertainty. But, as I started to discuss here, I am not sure there is anything lower courts can do now to prevent the need for future do-overs. First, it is possible (probable?) that the Supreme Court will apply Blakely to the federal guidelines in a novel way so as to create applicable sentencing rules that no one has heretofore thought to apply. Second, I think every defendant sentenced during this period of great uncertainty has an arguable claim that due process requires re-sentencing (perhaps with the submission of new evidence) once the legal rules are clarified. Though courts, for reasons of "judicial economy," will likely resist allowing too many do-overs, questions about who will get resentenced (and how and when) will all have to be litigated.

As evidence that lower courts are going to resist "do-overs" however they can, we get this per curiam opinion in US v. Levy from the Eleventh Circuit, which seems to seriously limiting opportunities to raise Blakely issues even while a case is still on direct appeal. For a host of legal and policy reasons, I find the Levy decision's waiver conclusion quite troubling (and I hope readers might use the comments to provide more insights). Here are the highlights from Levy (or lowlights if you are a defendant or defense attorney):

Appellant Levy’s Petition [for Rehearing] seeks to raise a new sentencing issue based on Blakely... Levy’s Petition concedes that his initial brief on appeal did not claim that he had a Sixth Amendment right to a jury trial on his federal sentencing enhancements.... In denying Levy’s Petition, we do not entertain this new issue because Levy did not timely raise it in his initial brief on appeal. This Court repeatedly has refused to consider issues raised for the first time in a petition for rehearing....

To allow a new issue to be raised in a petition for rehearing, or a supplemental brief, or a reply brief circumvents Federal Rule of Appellate Procedure 28(a)(5), which requires that an appellant’s initial brief must contain "a statement of the issues presented for review" [and] our practice has been longstanding. As we have explained, the rule requiring that issues be raised in opening briefs "serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them."....

For the reasons discussed above, we conclude that Appellant Levy has waived his Blakely-type claim by not raising it in his initial brief on appeal. Accordingly, Levy’s Petition for Rehearing is denied.

August 4, 2004 at 10:18 AM | Permalink


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I too find the waiver language disheartening. However, could a defendant possibly couch his/her claim for resentencing on jurisdictional grounds, rather than on constitutional rights grounds? If the upward enhancements of the USSGs are unconstitutional, then the district court would have no jurisdiction to enforce them, and the jurisdiction claim could not have been waived.

Perhaps I'm way off base, and if so, someone please correct me.

Law Student, University of Iowa

Posted by: Ryan S. | Aug 4, 2004 11:22:51 AM

I'm a federal defender practicing in the Eleventh Circuit. So far the Court (actually, Judge Frank Mays Hull) has struck all my motions for leave to file supplemental Blakely briefs and has struck one of my reply briefs for arguing Blakely. Interestingly, Judge Hull is also on the Levy panel. They've not yet struck a supplemental authority letter, but the government has filed motions to strike them in every case. My office intends to challenge the Eleventh Circuit's anti-Blakely policy in the Supreme Court as a violation of Griffith v. Kentucky. I'd love to know if anyone else is working on this issue . . .

Posted by: Kristen Rogers | Aug 4, 2004 1:39:50 PM

I just argued before the Fifth Circuit this morning, and one issue was whether I could amend an appeal with Blakely issues. The AUSA, objected to our supplemental pleadings.

But I think Justice Blackmun said it best in Griffith v. Kentucky, 107 S.Ct. 708 (1987) "We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past. Accordingly, in No. 85-5221, the judgment of the Supreme Court of Kentucky is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. In No. 85-5731, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion."

I thought this idea was well settled until this week.

Posted by: Rob Ratliff | Aug 4, 2004 2:25:45 PM

This is a particularly disheartening example of formalism over realism or, a cynic might more reasonably conclude, a triumph of determinism.

The court claims that "Levy did not timely raise it in his initial brief on appeal." It also notes that the rule requiring that issues be raised in opening briefs "serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them." Finally, it gives lip service to the argument that Blakely's significance could not possibly have been anticipated in the appellant's opening brief when it dismisses that point in footnote 3: "while Levy may not have predicted the Supreme Court’s ultimate conclusions in Blakely, it is also true that the general argument that a jury must determine all facts regarding sentence enhancements was available to Levy and indeed made by defendants ever since the Sentencing Guidelines came into being."

One wonders whether any "valuable purpose" would truly have been served by the appellant raising in his opening brief a Blakely-style argument that would certainly have been foreclosed by circuit precedent. The court's efforts to dig to the bottom of the procedural-default barrel to deny relief in this small category of cases still on direct appeal, when it appears to concede that a Blakely claim could be raised in other categories of cases on direct appeal, don't really seem to serve a principled goal.

Instead, it seems to reflect a bias in favor of preserving severe sentences of now-questionable constitutionality at all costs. The transparency of that underlying goal leads one also to wonder if the members of the panel would have worked so hard to preserve finality if it had been the government seeking rehearing to apply new Supreme Court precedent that would have resulted in reinstatement of a harsher sentence. Isn't that the type of subjective sentencing bias the guidelines were supposed to eliminate?

Posted by: Alex E. | Aug 7, 2004 6:09:29 AM

Can't raise Blakely-type claim / issue on direct appeal before Blakely--it's foreclosed by circuit precedent. Can't raise it after Blakely, if you didn't have it in your opening brief--also by circuit precedent and practice.

So what, in the Eleventh Circuit's view, does it mean to get the benefit of a new rule if your case is still on direct appeal?

Also, what about the folks, in any circuit, who are still in the 90-day cert. petition window? Shouldn't they be able to go back for rehearing? Their cases are still on direct appeal too.

Appellate whipsaws are ugly.

Posted by: Michael Ausbrook | Aug 12, 2004 11:18:22 AM

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Posted by: laptop battery | Oct 14, 2008 5:34:13 AM

It also notes that the rule requiring that issues be raised in opening briefs "serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:37:48 AM

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